06 July 2011

A Round Tuit (61)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Whatever one's views on the advisability of single-payer healthcare or a mandated health insurance scheme, the manner in which the Obamacare plan was adopted and is being defended in the courts should be of concern. Several challenges to the law have been heard by various courts and to say that divisions amongst them are apparent in those decisions would put things mildly; appropriately for a legislative enactment like this one, these divisions surely will someday be resolved by the Supreme Court.

Meanwhile, without a consensus amongst the lower courts, we're left to interpret these decisions like tea leaves, searching for portents of the SCOTUS' eventual ruling. Somewhat troublingly, to this point ideology has been an effective predictor of judges' decisions, with Democrat-appointed judges finding Constitutional bases to uphold Obamacare and Republican-appointed ones finding it to be unconstitutional. It's noteworthy then when, as this past week, a Sixth Circuit judge applauded by the conservative legal movement cast the deciding vote in a 2-1 decision upholding the individual mandate. Orin Kerr wrote:

Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular “feeder” judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate. In light of that, I think the important aspect of today’s opinion from the Sixth Circuit is that Judge Sutton concluded that the mandate is constitutional.

Ilya Somin also noted the importance of Sutton's vote, as well as the implications of the majority's take on the central activity/inactivity Commerce Clause question:

Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress’ powers under the Commerce Clause.

At the same time, Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect.

The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people.

Commenting on the court's inactivity-as-economic-activity (il)logic, Aaron Worthing expressed the sentiments of many on the libertarian-right side of this debate (but did so more entertainingly than most):

So…inactivity is activity? Well, this is how they try to fudge it:

The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan.

So by that logic, there is no such thing as inactivity. I am right now engaged in the following activities: not buying a car, not buying a video game, not buying food, not buying the services of a prostitute… and so on. The mind boggles.

Peter Suderman suggested that reasoning like the Sixth Circuit's takes seemingly plain concepts and words into a realm of nonsense:

So how did both Sutton and Martin arrive at the conclusion that the non-purchase of health insurance was an activity over which Congress has regulatory authority?

According to both judges, failing to purchase health insurance is still an economic activity, and therefore subject to Congressional mandates, because the mandate simply regulates the time at which an individual will inevitably pay for health care.

....

The definition of economic activity here has been stretched to the point of meaninglessness. By this definition, the non-purchase of health insurance is an economic activity regardless of whether one chose to do it, regardless of whether one made other plans, regardless of whether one did, said, or thought anything—or nothing—at all. There’s no action required, no intention or choice; it applies to everyone solely by virtue of their existence. It is a strange sort of activity that does not require one to do anything at all in order to participate.

Ilya Shapiro was even more blunt in his criticism of Sutton's decision:

Today’s 2-1 Sixth Circuit Obamacare decision was an exercise in unwarranted judicial deference, not by the author of the majority opinion, Judge Boyce Martin, who regularly rubberstamps misuses of federal power, but by concurring Judge Jeffrey Sutton, who avoided the logical implications of this ruling and punted the main issue to the Supreme Court. Under a document establishing a government of enumerated and therefore limited powers, the burden is on that government to prove that it has the power to do something, not on the plaintiffs to disprove that power. Never has the Supreme Court ratified the federal power to force someone to buy a product in the marketplace under the guise of regulating commerce. Indeed, never, not even during the height of the New Deal, had Congress asserted such a power—until the health insurance mandate.

To allow such a power now is to read out of the Constitution any structural limitations on federal power, which, as Justice Kennedy reminded us for a unanimous Supreme Court two weeks ago in Bond v. United States, are the Constitution’s first and greatest protectors of liberty. While a progressive like Judge Martin could be expected to accept any exercise of federal power, it is shocking that an avowed constitutionalist like Judge Sutton requires Congress to show only a rational basis behind what it does—a “reasonable fit” between the means it chooses and the ends of regulating interstate commerce—to survive constitutional scrutiny. Under such logic, Congress can do anything it wants so far as it is essential to a larger regulatory scheme. That cannot be the law.

Randy Barnett disagreed with the majority's reasoning, but he suggested that those who saw the Sixth's ruling as a catastrophe for Obamacare's opponents should take a closer look; he identified eight aspects of the decision (well, after a correction, seven) which should be taken into account, including the divisions even within the three-judges panel which heard this challenge, their recognition of both the unprecedented scope of the mandate and the standing of these claimants (and others) to change it, and their rejection of the tax power arguments advanced by the government. Barnett discussed Judge Sutton's theory of facial challenges and predicted that his reasoning and his centrist position will not carry the day before the Supreme Court:

According to Judge Sutton’s view of facial challenges, the mandate is constitutional as applied to anyone who already has insurance. Having once voluntarily chosen to get insurance, they can be mandated never to stop. Like the Roach Motel, once citizens check into the health insurance market, they can never check out. This implication of Judge Sutton’s analysis is a sign of its weakness, and why it won’t be adopted the Supreme Court.... But the key is that his view of facial challenges was crucial to his decision, because it allowed him to avoid the hardest issues posed by the mandate: compelling citizens into a market – here the insurance market – who are not currently in that market.

....

This would be a radical conclusion I doubt the Supreme Court will adopt. By the time it reaches the Supreme Court, Judge Sutton’s analysis of facial challenges will have been thoroughly vetted. In the end, the choices for the justices will be between something like Judge Martin’s opinion or Judge Graham’s. The “center” will not hold.

As we commemorated the anniversary of our Declaration of Independence this past weekend, many around the legal blogosphere took the occasion to discuss that document and the Constitution which grew from its stirring words. The latter is, of course, the cornerstone of American law and thus American (and America-interested) legal discussion online, inspiring endless debate and interpretation. The former is, in the best sense, a relic unchanged by the passage of time.

Left or Right, Democrat or Republican, we're all Declaration of Independence originalists; what's more, you don't hear too many people (other than a few who watched just a bit too much royal wedding coverage) suggest that the Declaration was a poor decision and we should've stayed British. Its words are, to my ear, pure poetry and several legal bloggers posted its full text on the Fourth. Ken Kersch considered the deeper meaning of the Declaration's moral political philosophy and its continuing influence on conservative political and legal thought; while I think he he gives short shrift to the progressive ideals expressed in the Declaration, as a meditation on the roots of principled conservatism, it's worth a read:

In my fifth of July posting, I thought I would focus on the Declaration of Independence, not in its 1776 incarnation, but as a touchstone for political and constitutional argument for succeeding generations. Of course, there is a long history to this, most famously, perhaps, Elizabeth Cady Stanton’s Seneca Falls Declaration (1848), the political thought of Abraham Lincoln and Frederick Douglass. But it extends well beyond this, to legions of everyday people, in the normal practice of politics, making claims on behalf of their God-given natural rights.

....

The Declaration is serving as an important touchstone today for conservatives.

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Lincoln... effectively synthesized the claims of Reason and Revelation... emphasizing the nation’s foundations in the unwavering, timeless truths of God (as opposed to the simple will of the people, by majority vote). As such, the integration of the (timeless/eternal/God-Given Truths) of the Declaration into the Constitution redeemed the American Founding. Only those that “hold these truths” have the firm grounding necessary to oppose slavery -- or (Godless) communism, with its constitutionally unlimited state (or abortion, or homosexuality, or gay marriage, etc.). Secular, relativist, positivist liberals and progressives lack this firm grounding. In this, they are like Stephen A. Douglas, with his theory of popular sovereignty (though Douglas was no relativist: he simply believed that politics could be separated from morals). Liberals and progressives aren’t committed to the principles of the Declaration, as redeemed by Lincoln. As such, they betray the Founders, and the great cause of the Civil War (as philosophized by Lincoln). The result is perversion, degeneracy, and decline.

Turning to the Constitution, several legal bloggers discussed various threats to the Bill of Rights generally and the First and Fourth Amendments particularly. Commenting on a recent Tennessee legislative effort to ban offensive speech, Rick Horowitz wrote that such misguided lawmaking is an affront to American ideals:

This July 4, as we continue to celebrate the birth of our Nation long after the death of the document that created it — and as I sit down to write a few possibly patently offensive statements about that — I find it particularly appropriate that Tennessee has decided to go after one of the two remaining Amendments in the Bill of Rights that the United States Supreme Court has not yet seen fit to officially obliterate.

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The scariest part of the story, though, came from one of the co-sponsors of the bill:

In his opinion, Rep. Moore said the law does not violate any constitutional protections, including freedom of speech.

“When you get into crossing the line so to speak you do not have a right to impose your speech on other people,” he said.

So if the government wants to stop you from saying things that some government official wouldn’t want to hear, then that shouldn’t count as a restriction on freedom of speech, right?

Or, to put it more colloquially, “Freedom of speech? F*ck freedom of speech!”

Happy Birthday, America.

Both Judge Alex Kozinski and Stephanie Grace, one of his law clerks, have seen their private conversations and thoughts receive unwanted, widespread online scrutiny (off-color jokes posted at a private site and e-mailed thoughts about the correlation between race and intelligence, respectively); it's somewhat understandable then, that the two would team to write an essay suggesting that our loss of privacy in recent years — willingly sacrificed, they argue — marks the end of Fourth Amendment protections based upon expectations of privacy. They wrote:

When did the Fourth Amendment die, you ask?

Recently, but it’s been sick for a while.

So why haven’t you heard about it?

Because you’re the murderer. We all are. Our weapon of choice?

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It started with the supermarket loyalty programs. They seemed innocuous enough — you just scribble down your name, number and address in exchange for a plastic card and a discount on Oreos.

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These cards were just the beginning. Fast Track passes quickly followed — with their lure of a shorter commute for a little privacy. Then came eBay and Amazon, which save us from retyping our billing and shipping information, if only we create an account. Before long, convenience became paramount, and electronic tracking became the norm.

....

With so little left private, the Fourth Amendment is all but obsolete. Where police officers once needed a warrant to search your bookshelf for “Atlas Shrugged,” they can now simply ask Amazon.com if you bought it. Where police needed probable cause before seizing your day planner, they can now piece together your whereabouts from your purchases, cellphone data and car’s GPS. Someday soon we’ll realize that we’ve lost everything we once cherished as private. And as we grieve the loss of the Fourth Amendment, we’ll be forced to look deep in our hearts—and at the little pieces of plastic dangling from our keychains — and ask ourselves if it was all worth it. R.I.P.

Kashmir Hill ventured that the two have the U.S. v. Jones case, coming soon to a Supreme Court near you, in mind:

Kozinski and Grace don’t offer a solution, though I imagine they’re hoping the Supreme Court will read this before deciding a new case added to the docket this week, U.S. v. Jones, deciding whether police need a warrant to put a GPS tracking device on someone’s car. Wired called it “one of the biggest Fourth Amendment cases in a decade.”

By Kozinski and Grace’s logic, the Court could say that because most people have a Garmin in their car at all times keeping track of their GPS (as well as a smartphone doing the same thing), their reasonable expectation of privacy in where they go has taken a hit. Privacy advocates will be hoping that the Supreme Court will keep the Fourth Amendment on life support by deciding that law enforcement do need to get a court’s permission before slapping a tracker on your vehicle.

Kozinski having offered no solution, Scott Greenfield suggests one to him — accept that judges have played a major part in creating this state of affairs and start fixing the damage the courts have done:

...Judge Kozinski's essay seems intended to lay blame for the disease, when he was the surgeon who let the body politic die. The disease is hardly incurable, and actually deals with only one facet of the Fourth, while others had been murdered by exception after exception for decades. Who's responsible for those deaths, judge?

The current construct presumes that each of us, as we go about our daily lives, has a firm and complete grasp of the most intricate aspects of technology, and holds us accountable by eliminating our personal privacy protection because of the way some ISP routes our emails and cell towers triangulate our smartphones.

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People just don't know. And people just don't care.

Is our future to hang by the thin thread of our being held to the most intimate knowledge of every tech advancement, every investigative mechanism to sneak a peak at every keystroke, because the courts have interpreted a doctrine that made sense in the physical world by seems inane in the digital world?

If yes, then we're dead and Judge Kozinski is right, at least to the extent digitalis afflicts us. But it doesn't have to be this way. Not at all.

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So Judge Alex, better to give the 4th a good shake and wake it up before declaring it dead. You're a circuit judge, for crying out loud. You know the problem. Do something about it. The only reason the Constitution has become subservient to technology is because judges haven't gotten off their butts to deal with it.

"Pro bono" is a shortened, colloquial form of "pro bono publico" — that volunteer work which members of the profession undertake "for the public good". As Nathan Koppel reported, pro bono work was sharply-diminished this past year, with large firms turning a greater share of their attention to work not for the public good:

Charity was in relatively short supply last year, according to [American Lawyer magazine], which reports a 10.8% decline in the average number of hours lawyers at the 100 highest-grossing law firms spent on pro bono work. The plunge reverses a decade of steady growth in pro bono output among those firms.

“The fact is that associates do the heavy pro bono lifting at big firms, and those [associates] who survived the recession layoffs found themselves loaded up with paid work in last year’s turnaround,” said AmLaw editor Robin Sparkman.

Larry Ribstein suggested that the decine of pro bono is characteristic of the broader decline of BigLaw:

Big Law uses pro bono to build reputational capital, both directly as a good deed and indirectly as associate training. ...[T]hese firms are dissolving into groups of individual client-oriented partners. Firm reputational capital is out the window, and with it pro bono.

But there’s more. Big Law pro bono is just an aspect of the organized bar’s focus on pro bono as a way of deflecting criticism from its overall failure to serve the needs of the poor and middle class.

....

One approach [to serving with needs of the poor and middle classes with less BigLaw pro bono] is massive public subsidy of high-cost lawyers. I think a better approach is drastic changes in the licensing regulation of law practice. You don’t need three years of high-priced law school to serve many of the needs not being met by pro bono.

BigLaw firms are certainly not the only lawyers contributing pro bono work — medium and small firms do their share, as do many solo practitioners — and Ribstein is correct to note that law students and other non-lawyers can, with some relaxation in licensing regulations, serve at least some of the need. Relaxed licensing rules would enable greater participation by many in-house counsel as well. At its In-House ACCess blog, the Association of Corporate Counsel argued for such changes (and as a registered in-house counsel in California — my full membership is in the Oregon Bar — I heartily agree):

[M]any jurisdictions now permit non-locally barred in-house attorneys to practice law for their employer-client as long as they are in good standing in another state. Unfortunately, this exception does not always extend to providing pro bono services to those most in need, and, when it does, it typically comes with difficult and unnecessary restrictions.

These restrictions are unacceptable. The need for pro bono legal services is immense and growing. Since 1994, studies have found that 80 percent of the legal needs of low-income individuals go unmet. Many in-house attorneys are interested in helping, but those who are not locally barred are handcuffed by state rules that unjustifiably limit their ability to contribute. The result is not that the pro bono work is getting done by other lawyers; it is simply not getting done. The rules must change.

Finally this week, I want to note a couple of blogging anniversaries. Keith Lee has been publishing for a year now at his An Associate's Mind blog. Frankly, I was surprised that his site's been around only a year; he's been on my reading list for what seems like much longer and his voice is a prominent one online. One year in, he offered a few thoughts:

I had no real intentions or goals. I only knew that I had opinion as to how I personally wanted to conduct myself as a new lawyer. I had interest in the classics, business, information technology, law, education, writing, and research. But I could not find a forum for me to discuss such topics en masse. I decided to create my own. If people wanted to come along for the ride, they were welcome to it.

I did not expect much in the way of traffic. If I was able to get 100 page views in a month I felt as though that would have been a success. Instead I had 2,783. Now I might have that many page views in a single day. But the numbers are not important. What is important is the conversation that an audience allows. Whether here at Associate’s Mind, or on Twitter, or Reddit, or some other blog or news site – I most enjoy the exchange of ideas and new relationships that have come from publishing my writings.

George Wallace marked eight years for his A Fool in the Forest "personal and cultural" blog, the companion to his practice-oriented Declarations and Exclusions site. For this eighth anniversary, Wallace offered eight posts from the past year "that do not, I think, embarrass their author too much." Modest as always; the least of these posts would be a highlight on anyone else's blog. Starting his ninth year, Wallace wrote that the endeavor "still carries enough satisfaction with it that this Fool is likely to keep wandering these woods for some time to come." It's his anniversary, but he gives his audience a gift.

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About Me

I am presently corporate counsel for Accela, Inc., a software company headquartered in San Ramon, California and am a member of both the Oregon and California State Bars. More detailed professional information is available at my LinkedIn profile.

I have been blogging at Infamy or Praise since early 2005. From 2006 to 2009, I served as a "Sherpa" at Blawg Review, the weekly carnival of legal blogging; I have also hosted (or co-hosted) six editions of Blawg Review, the first four of which were awarded a "Blawg Review of the Year" award. I formerly was a co-blogger at Unsilent Partners. I'm on Twitter as "colinsamuels".

I am the author of "Humanizing the Profession: Lawyers Find Their Public Voices Through Blogging" (11 Nexus L. J. 89 (2006)) and a contributing author to "Blogging and Other Social Media" (Gower Publishing Limited, 2008) and "Legal Profession: Modern Approach" (The Icfai University Press, 2008).

None of the foregoing blogging, tweeting, or personal writing necessarily represents the views of my employer; responsibility for these is entirely mine.